Last week the trial between Internet provider Cox Communications and BMG Rights Management began, a case that may prove crucial for determining how ISPs deal with piracy in the future.
The music group holds Cox responsible for not doing anything about subscribers who frequently pirate content, claiming millions in lost revenue.
During the trial hearings both sides presented their case and according to BMG the ISP has provided insufficient evidence to reasonably support its defense.
A few hours ago the music publisher submitted a new motion to the court. Instead of leaving it up to the jury, BMG asks the court to rule that Cox is responsible for the mass copyright infringements on its network.
“Cox has failed to controvert the evidence presented by BMG concerning the staggering amount of infringements of BMG’s copyrighted works committed by Cox’s subscribers,” the motion (pdf) begins.
“BMG has shown that Rightscorp detected approximately 1.847 million instances of infringement, where Cox subscribers offered BMG’s copyrighted works for download via the BitTorrent protocol,” it adds.
During the trial hearings BMG revealed that the tracking company Rightscorp downloaded more than 150,000 copies of their copyrighted works directly from Cox subscribers. Because Rightscorp doesn’t capture everything, the true figure is expected to be even higher.
In its defense, Cox pointed out that Rightscorp failed to preserve all copies of its tracking code. As a result, the company argued that the claimed copyright infringements can’t be fully trusted.
BMG disagreed with what it described as “unsupported assertions,” and stated that their own expert found that Rightscorp’s system accurately detects the copyright infringements which are central to the case.
According to BMG it’s “undisputed” that Cox subscribers pirated their works and that the ISP knew about it. Cox received numerous copyright infringement warnings and willingly decided not to act on them.
“The evidence is undisputed that Cox knew that the infringement notices that it blocked provided Cox with notice of infringement of BMG’s copyrights,” the publisher writes.
In addition, the music company argues that the ISP contributed to the infringements by promoting “downloading and sharing music” in its advertising campaigns.
“Cox not only knowingly provides the means by which the infringement of BMG’s copyrights occurs, the evidence is undisputed that Cox promotes its high-speed internet services for the purpose of downloading and sharing music,” they write.
“Because Cox’s network constitutes the sites and facilities by which the infringement of BMG’s occurs through BitTorrent and P2P, Cox has materially contributed to the infringement of BMG’s copyrights as a matter of law. No reasonable jury could find otherwise.”
If the court agrees with BMG then there’s not much left for the jury to decide. One of the outstanding issues would be the amount of damages they award to the music publisher.
According to a proposed jury instruction there are 1,397 copyrighted works as part of this suit, each with a maximum of $150,000 in damages. This brings the total maximum damages to a mind-boggling $209,550,000.
Cox hasn’t had an easy defense during the trial. A week before it started Judge O’Grady issued an order declaring that Cox is not entitled to DMCA safe-harbor protections, as the company failed to terminate the accounts of repeat infringers.
With millions at stake, as well as the future of ISPs’ copyright infringement policies, the trial outcome will be closely watched by both the telecoms industry and copyright holders.